U.S. v. Rodriguez De Varon

• Citation: 136 F.3d 740
• Decision Date: 03 March 1998
• Docket Number: No. 96-5421,96-5421
• Parties: 11 Fla. L. Weekly Fed. C 1127 UNITED STATES of America, Plaintiff-Appellee, v. Isabel RODRIGUEZ DE VARON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

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136 F.3d 740 11 Fla. L. Weekly Fed. C 1127 UNITED STATES of America, Plaintiff-Appellee,
v.
Isabel RODRIGUEZ DE VARON, Defendant-Appellant. No. 96-5421. United States Court of Appeals,
Eleventh Circuit. March 3, 1998.

Page 741

Kathleen M. Williams, Federal Public Defender, Faith Mesnekoff, Asst. Federal Public Defender, Miami, FL, for Defendant-Appellant.

William A. Keefer, U.S. Atty., Dawn Bowen, Asst. U.S. Atty., Anne Ruth Schultz, Phillip DiRosa, Asst. U.S. Atty., for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

Isabel Rodriguez De Varon appeals from a conviction of the importation of heroin in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2(a). She was convicted in the U.S. District Court for the Southern District of Florida after pleading guilty to the charge. She was sentenced to 46 months in prison. She appeals the district court's denial of a two-point sentence reduction for her role as a minor participant in the crime. We have reviewed her contentions and vacate and remand her sentence for further proceedings in the district court.

I. Factual and procedural history

De Varon arrived at Miami International Airport on June 12, 1996 aboard a flight from Bogota, Columbia. She reported to United States Customs, and officials suspected that she might be an internal carrier of narcotics. When examined by the officials she admitted that their assumption was correct. De Varon was then taken to a hospital where medical examination revealed that she had ingested 70 pellets of heroin. The government recovered 514 grams of 85 percent pure heroin from De Varon.

A federal grand jury returned a two-count indictment against De Varon charging her with importation of heroin in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2; and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. De Varon agreed to plead guilty to the charge of importation alleged in Count One and to forfeit the $2,350 she was carrying at the time of her arrest in return for the government's agreement to dismiss Count Two. The government also agreed that it would not oppose De Varon's request for a three-level sentence reduction for timely acceptance of responsibility or her application for the "safety valve" protection provided in the sentencing guidelines if she met all of the requirements. See U.S. Sentencing Commission, Guidelines Manual, § 5C1.2 (Nov.1995). ¹

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The district court accepted the plea and ordered that a Presentence Investigation Report be prepared. The report calculated De Varon's base offense level under the guidelines as a 28. The preparer then deducted two levels because De Varon qualified for the "safety valve" provision found in U.S.S.G. § 2D1.1(b)(4) ² and three more levels for De Varon's timely acceptance of responsibility for her conduct as provided by U.S.S.G. §§ 3E1.1(a) & 3E1.1(b)(2). The resulting offense level was a 23. After determining that De Varon had no prior criminal convictions the preparer assigned her a criminal history category of I. The sentencing guideline range for an offense level of 23 with a criminal history of I is 46 to 57 months.

De Varon objected to this calculation, insisting that she should be granted a mitigating downward adjustment for her minimal or minor role in the offense. The probation officer who prepared the report rejected her assertions as did the district court. The court noted that De Varon offered no evidence other than her own statement to prove that other, more culpable parties existed and had participated in the crime. Furthermore, the court stated that even if her account of other participants was true, it would not reduce her sentence. The court said:

[T]he fact that she can point to other people that may have provided the narcotics to her would not alter my own determination that she played an integral and essential part in the scheme to import.

As I have noted in the past, but for individuals willing to perform the role that this defendant played, we would not have the importation being attempted or succeeding in other instances.

And, ... the guidelines refer to a small amount of drugs to entitle the defendant to a reduction. And I would conclude that 512.4 grams of heroin is not a minor amount within the meaning of the guidelines in order to entitle someone to [sic] minor or minimal level role.

After denying her requests for a downward adjustment the court sentenced De Varon to 46 months in prison. On appeal De Varon raises only one substantive issue, whether she should have been granted a sentence reduction based on her minor role as a courier of the heroin. ³

II. Discussion

A. Standard of review

The parties dispute the proper standard of review for this case. The government contends that a district court's determination of whether a defendant qualifies for a sentence reduction based on her role must be reviewed only for clear error. De Varon urges that the decision of the district court is subject to de novo review. De Varon is correct. While it is true that we review the district court's factual findings with deference, when we examine its legal conclusions as to what proof is required for a role adjustment we must exercise de novo review. See U.S. v. Veloza, 83 F.3d 380, 381 (11th Cir.1996); U.S. v. Rojas, 47 F.3d 1078, 1080 (11th Cir.1995). In this case the district court decided that as a matter of law a courier who is the sole charged participant in a drug crime is not eligible for a role reduction as a minor participant where she offers

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only her own testimony as proof of her role. The court also determined that the amount of drugs imported was conclusive in determining role. These are legal conclusions subject to our de novo review.

B. The minor role adjustment

Section 3B1.2 of the sentencing guidelines provides a two to four-point offense level reduction where a defendant's role in a crime can be described as minimal or minor. The guidelines provide a four-level decrease for minimal participants, a two-level decrease for minor participants, and a three-level decrease for those participants whose role falls between minimal and minor. U.S.S.G. § 3B1.2(a) & (b). To receive a four-level reduction a defendant must be "among the least culpable of those involved in the conduct of a group.... [L]ack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant." U.S.S.G. § 3B1.2, comment. n. 1. The commentary gives an example of a minimal participant as "someone who played no other role in a very large drug smuggling operation than to off load part of a single marihuana shipment, or ... [who] was recruited as a courier for a single smuggling transaction involving a small amount of drugs." Id. at n. 2.

A minor participant in a crime is described as someone "who is less culpable than most other participants, but whose role could not be described as minimal." Id. at n. 3. The guidelines also note that "[t]he determination whether to apply subsection (a) or subsection (b), or an intermediate adjustment, involves a determination that is heavily dependent upon the facts of the particular case." U.S.S.G. § 3B1.2, comment. (backg'd.).

These comments indicate that downward adjustments based on role are highly fact specific and that courts should make a separate inquiry as to whether the facts support any of the three levels of departure. In the present case the district court considered both a minimal role reduction and a minor role reduction simultaneously rather than applying the standard that is unique to each ground for departure.

The district court's ruling at the sentencing hearing can be interpreted as denying a downward adjustment for each of the three following alternative reasons: (1) the court found that De Varon's uncorroborated account of the crime and its participants was unbelievable; (2) couriers of drugs should never be considered minimal or minor participants because they are an indispensable part of the drug importation scheme; and (3) the amount of heroin that De Varon imported was too large for her to be considered for either a minimal or minor role reduction. Because the court offered these reasons in the alternative, we could affirm its decision if any one of them properly supported its denial of a downward adjustment. De Varon concedes that the court's third reason for the denial, drug amount, is a proper ground for denying a minimal role adjustment. She challenges only the court's denial of her request for a minor role adjustment pursuant to U.S.S.G. § 3B1.2(b).

i. De Varon's testimony

The district court's first reason for denying the request for an adjustment hinged on the fact that De Varon offered only her own, uncorroborated testimony to prove that other participants in the crime were more culpable than she was. De Varon offered to testify that she was in desperate need of money for her son's operation and that she was approached by a woman named "Nancy" at De Varon's workplace who solicited her to become an internal carrier of drugs. De Varon...